Atl. Coast Line R. Co v. Anderson, 31709.

• Decision Date: 03 October 1947
• Docket Number: No. 31709.,31709.
• Citation: 44 S.E.2d 576
• Parties: ATLANTIC COAST LINE R. CO. v. ANDERSON.
• Court: Georgia Court of Appeals

44 S.E.2d 576

ATLANTIC COAST LINE R. CO.

v.ANDERSON.

No. 31709.

Court of Appeals of Georgia, Division No. 1.

Oct. 3, 1947.

Rehearing Denied Oct. 24, 1947.

Syllabus by the Court.

1. The evidence authorized the verdict for the plaintiff.

2. The court did not err in refusing defendant's written request to charge as complained of in ground two of the motion.

3. The court did not err in charging the jury with reference to the alleged negligence of the engineer in failing to stop his train as complained of in ground four.

4. The court did not err in overruling defendant's motion for a mistrial.

Error from Superior Court, Grady County; Carl E. Crow, Judge.

Suit by Eula K. Anderson, executrix, against the Atlantic Coast Line Railway Company to recover for the death of the plaintiff's husband in a collision of trains operated by the defendant. To review a judgment for the plaintiff, the defendant brings error.

Judgment affirmed.

Bell & Baker, of Cairo, and Bennet, Peacock & Perry, of Albany, for plaintiff in error.

Arnold, Gambrell & Arnold, of Atlanta, and Ira Carlisle, of Cairo, for defendant in error.

PARKER, Judge.

This is the second appearance of this case in this court. The facts are fully stated in the decision published in 73 Ga.App. 343, 36 S.E.2d 435, which was affirmed by the Supreme Court in 200 Ga. 801, 38 S.E.2d 610. Upon the second trial the plaintiff, Mrs. Eula Anderson, obtained another verdict and judgment against the defendant, Atlantic Coast Line Railroad Company, for damages for the death of her husband in a collision of trains operated by the defendant. The defendant's motion for new trial was overruled and it excepted. Although eight special grounds are included in the motion as amended, only grounds two, five and eight have been argued and are insisted upon in this court.

1. The evidence upon the two trials was substantially the same. A comparison of the records shows that all of the witnesses who appeared for the plaintiff in the first trial testified in the last trial, and also one additional witness who saw the collision between the trains. All of the witnesses for the defendant on the first trial, with the exception of three, testified on the last trial, but no new or additional witnesses were sworn by the defendant. The documentary evidence was practically the same in both trials. Therefore the evidence in the two trials is not materially different. We held in effect on the first appeal that the evidence supported the verdict on the first trial, and although the second verdict for the plaintiff was substantially larger than the first, we cannot say on the general grounds of the motion that it was unauthorized.

2. Ground two of the amended motion avers that the trial judge erred in failing to charge the jury a written request as follows: "I charge you further that the mere fact that the accident would not have happened if the conductor on Mr. Anderson's train, and the engineer on the other train had acted as it is claimed they should have acted, does not require the conclusion on your part that their conduct was a contributing cause to Mr. Anderson's death. The question of what was the proximate cause of his injury is the question solely for your determination within the rules of law given you in charge by the court."

The plaintiff in error contends that the charge requested embodied a correct legal principle which was applicable to the facts of the case, and that the court erred in refusing it even though in principle and in more abstract terms the charge requested may have been covered by other instructions given by the court. A long list of cases beginning with Terry v. State, 17 Ga. 204, and ending with Western & Atlantic R. R. v. Frazier, 66 Ga.App. 275, 18 S.E.2d 45, is cited to sustain these contentions. As a general rule a ground of a motion for new trial complaining of the refusal of the court to charge a written request is not valid where it appears that in the charge given the request was substantially covered; but there are exceptions to this rule. "A specific charge, which is legal, and adjusted to a distinct matter in issue * * * and which may materially aid the jury, should be given as requested, although in principle and in more generaland abstract terms it may be covered by other instructions given by the court. [90 Ga. 500, 16 S.E. 50]" Thompson v. Thompson, 77 Ga. 692, 3 S.E. 261; Metropolitan St. R. Co. v. Johnson, 90 Ga. 500, 501(5), 16 S.E. 49; Crawford v. State, 117 Ga. 247(4), 43 S.E. 762; Kaufman v. Young, 32 Ga.App. 135(2), 122 S.E. 822. "A refusal to instruct the jury in accordance with a correct request, duly made in writing and peculiarly appropriate to the facts of the case, is, when the refusal probably resulted in harm to the party making such request, cause requiring the grant of a new trial, though the court gave in charge an abstract principle of law covering the request." Central of Georgia R. Co. v. Goodman, 119 Ga. 234(2), 45 S.E. 969. A leading case cited by counsel for both parties in which the general rule and the exceptions are ably discussed is Werk v. Big Bunker Hill Mining Corporation, 193 Ga. 217, 17 S.E.2d 825.

A specific charge requested must be legal and correct as a matter of law, and if it does not state a correct principle of law it should be refused. We have considered the request refused by the court in this case very carefully, and without regard to any other objections that may be made to it, we have concluded that it does not state a correct legal principle. The charge requested referred to the conduct of the conductor on Mr. Anderson's train, and to the acts and conduct of the engineer on the other train, and it related to the specific negligence alleged against said conductor and engineer. As to the conductor, it was claimed that he did not apply the brakes on his train and stop the same promptly upon the failure of the deceased to blow the meeting point signal before reaching that point, and the negligence claimed against the engineer on the approaching train was that he did not maintain a lookout down the track, and did not discover the other train on the main line, and did not exercise ordinary care in stopping his train before striking deceased's train. The alleged negligence of these two employees, the conductor and the engineer, was all the negligence charged by the plaintiff against the defendant after other allegations of negligence had been stricken on demurrer.

The request submitted, if charged, would have instructed the jury that even though the collision would not have occurred if the conductor and engineer had not been negligent, this fact did not require the conclusion that their negligence was a contributing cause of the collision. We do not think this was a correct statement of the law applicable to the case. Exactly the reverse of what the request contained seems to us to be correct. If there would have been no collision had the conductor and engineer not been guilty of negligence in one or more of the ways alleged, it seems to follow that if they were negligent such negligence necessarily contributed to the collision and the death of the deceased. In other words, if the jury found as a matter of fact that without the negligence of the conductor and the engineer there would have been no collision, such finding would require a conclusion on their part that such negligent conduct was a contributing cause of Mr. Anderson's death. If the collision would not have occurred, had the conductor and the engineer not been negligent as alleged, causes wholly outside of their negligence did not operate alone to bring about the collision. It must follow that if there would have been no collision without their negligence, such negligence in part caused the collision and necessarily thus contributed thereto. The charge requested was tantamount to an instruction that even though the conductor and engineer were negligent in the ways alleged by the plaintiff, and their negligence caused the collision in that it would not have occurred without their negligence, the jury could still find that their negligence could not have contributed to the collision and the death of the plaintiff's husband. We think the request was properly refused for the reasons stated.

3. Ground five alleges that the court erred in submitting in the charge to the jury a ground of negligence not authorized by the evidence and which could not constitute a basis for recovery. One of the acts of negligence alleged against the engineer on train number 57, which raninto the deceased engineer's train, number 12, was that he was negligent in not exercising ordinary care to bring his train to a stop after seeing the other train on the main line. It may be conceded under the authorities that follow that if there was no evidence to support this ground of negligence it should not have been submitted to the jury. Columbus Mfg. Co. v. Gray, 9 Ga.App. 738, 72 S.E. 273; Americus Gas & Electric Co. v. Coleman, 16 Ga.App. 17, 84 S.E. 493; Atlantic Coast Line R. Co. v. Baker, 32 Ga.App. 513, 123 S.E. 909; Western & A. R. Co. v. Branan, 123 Ga. 692, 51 S.E. 650; Central of Georgia R. Co. v. Keating, 177 Ga. 345, 170 S.E. 493. On the other hand, the charge should cover every contention of the parties made by the pleadings in the case and supported by the evidence. "It is the duty of the court to instruct the jury as to the law applicable to every material issue in the case, even in the absence of any request; but, where an issue, though raised in the pleadings, is not supported in the evidence, it is error to charge upon any issue...